Francis Welch v. George Swasey, No. 153
| Court | United States Supreme Court |
| Writing for the Court | Peckham |
| Citation | 53 L.Ed. 923,29 S.Ct. 567,214 U.S. 91 |
| Parties | FRANCIS C. WELCH, Trustee, Plff. in Err., v. GEORGE B. SWASEY et al., as the Board of Appeal from the Building Commissioner of the City of Boston |
| Decision Date | 17 May 1909 |
| Docket Number | No. 153 |
v.
GEORGE B. SWASEY et al., as the Board of Appeal from the Building Commissioner of the City of Boston.
Page 92
The plaintiff in error duly applied to the justices of the supreme judicial court of the state of Massachusetts for a mandamus against the defendants, who constitute a board of appeal from the building commissioner of the city of Boston, to compel the defendants to issue a permit to him to build on his lot on the corner of Arlington and Marlborough streets, in that city. The application was referred by the justice presiding to the full court, and was by it denied (193 Mass. 364, 118 Am. St. Rep. 523, 79 N. E. 745), and the plaintiff has brought the case here by writ of error.
The action of defendants in refusing the permit was based on the statutes of Massachusetts, chap. 333 of the Acts of 1904, and chap. 383 of the Acts of 1905. The two acts are set forth in the margin.1 The reason for the refusal to grant the building
1 Acts of 1904, Chapter 333.
An Act Relative to the Height of Buildings in the City of Boston.
Be it enacted, etc., as follows:
Section 1. The city of Boston shall be divided into districts of two classes, to be designated districts A and B. The boundaries of the said districts, established as hereinafter provided, shall continue for a period of fifteen years, and shall be determined in such manner that those parts of the city in which all or the greater part of the buildings situate therein are, at the time of such determination, used for business or commercial purposes, shall be included in the district or districts designated A, and those parts of the city in which all or the greater part of the buildings situate therein are, at the said time, used for residential purposes or for other purposes not business or commercial, shall be in the district or districts designated B.
Sec. 2. Upon the passage of this act the mayor of the city shall appoint a commission of three members, to be called 'Commission on Height of Buildings in the City of Boston.' The commission shall, immediately upon its appointment, give notice and public hearings, and shall make an order establishing the boundaries of the districts aforesaid, and within one month after its appointment shall cause the same to be recorded in the registry of deeds for the county of Suffolk. The boundaries so established shall continue for a period of fifteen years from the date of the said recording. Any person who is aggrieved by the said order may, within thirty days after the recording thereof, appeal to the commission for a revision; and the commission may, within
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permit was because the building site for the proposed building was situated in one of the districts B, as created under the provisions of the acts mentioned, in which districts the height of
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the buildings is limited to 80, or, in some cases, to 100 feet, while the height of buildings in districts A is limited to 125 feet. The height of the building which plaintiff in error proposed to build and for which he asked the building permit was stated by him in his application therefor to be 124 feet, 6 inches.
The designation of what parts in districts B and upon what conditions a building could be therein erected more than 80 while not more than 100 feet high was to be made by a commission, as provided for in the act of 1905, and the commission duly carried out the provisions of the act in that respect. The sole reason for refusing the permit was on
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account of the proposed height of the building, being greater than the law allowed.
The plaintiff in error contended that the defendants were not justified in their refusal to grant the permit, because the statutes upon which their refusal was based were unconstitutional and void; but he conceded that, if they were valid, the defendants were justified in their refusal.
The court, while deciding that mandamus was a proper remedy, held that the statutes and the reports of the commissions thereunder were constitutional.
Messrs. Burton Edward Eames, Charles H.
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Tyler, and Owen D. Young for plaintiff in error.
[Argument of Counsel from pages 96-101 intentionally omitted]
Page 101
Mr. Thomas M. Babson for defendants in error.
[Argument of Counsel from pages 101-103 intentionally omitted]
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Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court:
The ground of objection of plaintiff in error to this legislation is that the statutes unduly and unreasonably infringe upon his constitutional rights (a) as to taking of property without compensation; (b) as to denial of equal protection of the laws.
Plaintiff in error refers to the existence of a general law in Massachusetts, applicable to every city therein, limiting the height of all buildings to 125 feet above the grade of the street (Act of 1891, chap. 355), and states that he does not attack the validity of that act in any respect, but concedes that it is constitutional and valid. See also, on same subject, Acts of 1892, chap. 419, § 25, making such limitation as to the city of Boston. His objection is directed to the particular statutes because they provide for a much lower limit in certain parts of the city of Boston, to be designated by a commission, and because a general restriction of height as low as 80 or 100 feet over any substantial portion of the city is, as he contends, an unreasonable infringement upon his rights of property; also that the application of those limits to districts B, which comprise the greater part of the city of Boston, leaving the general 125-feet limit in force in those portions of the city which
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the commission should designate (being the commercial districts), is an unreasonable and arbitrary denial of equal rights to the plaintiff in error and others in like situation
Stating his objections more in detail, the plaintiff in error contends that the purposes of the acts are not such as justify the exercise of what is termed the police power, because, in fact, their real purpose was of an esthetic nature, designed purely to preserve architectural symmetry and regular sky lines, and that such power cannot be exercised for such a purpose. It is further objected that the infringement upon property rights by these acts is unreasonable and disproportioned to any public necessity, and also that the distinction between 125 feet for the height of buildings in the commercial districts described in the acts, and 80 to 100 feet in certain other or so-called residential districts, is wholly unjustifiable and arbitrary, having no well-founded reason for such distinction, and is without the least reference to the public safety, as from fire, and inefficient as means to any appropriate end to be attained by such laws.
In relation to these objections the counsel for the plaintiff in error, in presenting his case at bar, made a very clear and able argument.
Under the concession of counsel, that the law limiting the height of buildings to 125 feet is valid, we have to deal only with the question of the validity of the provisions stated in these statutes and in the conditions provided for by the commissions, limiting the height in districts B between 80 and 100 feet.
We do not understand that the plaintiff in error makes the objection of illegality arising from an alleged delegation of legislative...
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